Put Hamas, Not Israel, on Trial

For the Criminal Court to work, the worst must come first.

There are efforts now underway to try to bring Israel before the International Criminal Court (ICC) in The Hague on charges of alleged war crimes. Neither Israel nor the United States has signed on to this court, primarily out of fear that its power would be used against democracies that try their best to avoid war crimes, rather than against dictatorships and terrorist nations that routinely engage in them. This has certainly been the experience with many United Nations organizations, even including the International Court of Justice, which is largely a sham when it comes to Israel and other democracies under attack.

There has been high hope among some human rights experts that the ICC would be different for two reasons: First and foremost it is not a United Nations court. It was established by the Rome Statute, a treaty adopted in 1998 after years of negotiations, and is largely independent of the United Nations, though not completely so. Cases can be referred to it by the UN Security Council under Article 13(b) of the treaty. The second reason the ICC has encouraged optimism is that the person appointed as the court's Chief Prosecutor, Luis Moreno-Ocompo, has a sterling reputation for objective law enforcement and basic fairness.

The ICC has rightly opened up investigations of genocide in Darfur, Sudan. (It is now under pressure to suspend any prosecution of President Omar al-Bashir). It has not opened investigations with regard to Russia's alleged war crimes in Chechnya and Georgia, where thousands of innocent civilians were killed. Nor has it opened investigations with regard to Pakistan, Afghanistan, Sri Lanka, Zimbabwe, the Congo and other places where civilians are routinely targeted as part of military and terrorist campaigns. Nor -- to its credit -- has it opened an investigation of Great Britain and the United States, whose armed forces have inadvertently caused the deaths of thousands of civilians in Iraq and Afghanistan.

Were it now to open an investigation of Israel, ICC would be violating the cardinal principle that must govern all international prosecutions: namely, that the worst must be prosecuted first. It would also be violating its own rules which mandate that the International Criminal Court will not become a substitute for domestic courts. If there are processes within the State of Israel to consider allegations against the Israel Defense Forces (IDF), then those processes must be allowed to move forward unless Israel is "unwilling or unable genuinely to carry out the investigation or prosecution," according to the Rome Statute. There is no country in the world -- literally none -- that has a judicial system that is more open to charges against its own government. Not the United States, not Great Britain, and certainly not Russia, Zimbabwe or Pakistan! Moreover, Israel has a completely open and very critical free press, which is constantly exposing Israeli imperfections and editorializing against them.

Third, the IDF has legal teams that must approve of every military action taken by the armed forces. There are obviously close questions, about which reasonable experts can disagree, but there is no country in the world that goes to greater lengths in its efforts to conform its military actions to international law. Listen to retired British Colonel Richard Kemp - a military expert who, based on his experience, concluded that there has been "no time in the history of warfare when an Army has made more efforts to reduce civilian casualties...than [the Israel Defense Forces in Gaza]."

If anything, Hamas belongs in the dock, not Israel.

Despite deliberate efforts by Hamas to maximize Palestinian civilian casualties by firing rockets from behind human shields, Israel has succeeded in its efforts to minimize civilian casualties. Hamas has a policy of exaggerating civilian casualties, both by inflating the total number of people killed and by reducing the number of its combatants included in that total. A recent study conducted by the Italian Newspaper Corriere della Sera disputed Hamas figures and put the total number of Palestinians killed, including Hamas terrorists, at less than 600. And this week, the UN withdrew claims made during the war that Israel had shelled a school run in Gaza by the UN Relief and Works Agency.

The same Rome Statute that established the ICC also describes many of Hamas's actions during the war, such as attacking Israeli civilians and using Palestinian civilians as human shields, as war crimes. Any fair investigation by the ICC would have to conclude that Israel's efforts to prevent civilian casualties, while seeking to protect its civilians from Hamas war crimes, rank it at the very top of nations in compliance with the rule of law. It would also conclude that efforts to brand Israel's actions as war crimes are crassly political, based on ideology and not law. If anything, Hamas belongs in the dock, not Israel.

The prosecutor of the ICC must resist pressures -- from the United Nations, from radical ideologues and from other biased sources -- to apply a double standard to Israel by singling the Jewish state out from among law-abiding democracies for a war crimes investigation. No international court can retain its credibility if it inverts the principle of "the worst first" and instead goes after one of the best as one its first.

Featured at Aish.com:

About the Author

Alan M. Dershowitz is the Felix Frankfurter professor of law at Harvard Law School, served as an attorney in several high-profile court cases, and is a sought-after commentator on the Arab–Israeli conflict. He is the author of some 25 books, including The Case for Israel.

Visitor Comments: 17

Dear Aish.Com
In my capacity of being a Danish lawyer I find professor Dershowitz' article
about responsability in warfare most appropriate.

(16)
Anonymous,
February 22, 2009 4:13 AM

Dear Editor,
the world has gone blind.The media are almost completely biased against Israel.
Even a 6 year old child would understand who the enemy is and where the Devil lives.
There is not worse blind than the one who doesn´t want to see.
Islamization is a fact. The world wouldn´t listen to this. They´d rather ignore than admit to it.
Who will be happy living under Islamic preposterous laws ? Perhaps The Independent staff will, along with their hibrid "terrojournalist Johan Hari ",whose op-ed articles are full of hatred towards Israel , he uses a very offensive language indeed!
This war broke out because of Hamas´s continual terrorist rocket-launching. Hamas pulled the trigger and hid behind children and schools.Hamas must be brought to all the courts of law along with Iran , Fatah , Jihad and Co.
"Almadinehitler" publicly threatens Israel with wipping it off the planet .But they keep demanding respect towards their "religion" and their "Kuoran fairy tale".In the meantime, in most Islamic countries women are stoned to death, "infidels" are hung in the streets , citizens have no rights, no education (just training to kill) , no houses - Gazans must get rid of Hamas.
Their "democratic" leaders got all set to keep their dreadful business going.
Where on earth do they store their billonaire income ?= (uranium)
Why is it that these infamous leaders keep their own people starving ?=( to blame Israel for the death toll)
Why is it that 22 Arab countries refuse to absorb 1.500.000 Gazans? = (their power would come to an end).
Let´s face it , who are the worst leaders around the world to be brought to justice ? Islamic terrorist of course! Then , the worst must go FIRST .

(15)
Richard,
February 19, 2009 5:31 PM

Known

1st,Return the kidnapped Jewish solider
And stop your death cult.

(14)
Carmen Waggoner, Ph.D.,
February 18, 2009 6:46 PM

I agree that the democratic government we presently have is not siding with Israel.

My personal opinion of Obama as President of the U.S. was and remains a deep concern to me. Now that he holds this position, I am able to verify that my fears were well founded. Although he occasionally refers to Isarel as an ally, he takes great pain to tone down any wrongdoing by Hamas. In other words, he goes out of his way to avoid any truthfull and direct reference to agression on the part of Hamas. I am a linguist and a psychologist, and these are observation that are very clear to me. I cannot discuss the legal aspects of the articles, but I am confident that Professor Dershowitz presents a very educated and truthful assessment of the situation regarding Israel, Hamas and the covert, but existing, bias of the democrats now in poser in the US.

(13)
Anonymous,
February 18, 2009 6:30 PM

GOOD!!!!

The world has gone blind.The media are mostly biased against Israel.Even a 6 year old child would understand where the truth must be placed.There is not worse blind than the one who doens´t want to see.Islamization is a fact.They wouldn´t listen to this.They´d rather ignore than admit to it.Who will be happy living under Islamic rules? Perhaps The Independent staff will, along with that hibrid Terrojournalist John Hari-,whose op-ed articles are full of hatred towards Israel. This war broke out because of Hamas´ s continual terrorist rocket-launching.Hamas pulled the trigger and hid behind children and schools.Hamas must be brought to all the courts of law worldwide.Iran must be brought as well. "Almadinehitler" publicly threatens Israel with wipping it off the planet and furiously declares that Jews must get drowned in the sea-Publicly!!!-Therefore, who is the worst here? Islam of course! The worst must go FIRST!

(12)
Beverly Kurtin,
February 16, 2009 7:50 PM

Fair, Shmair

I will begin to believe in the fairness of any world court the day that George Bush and company are arrested for their war crimes. Ditto for Hamas and the other terror groups. Israel is the only country that takes extraordinary efforts to avoid civilian deaths. The United States, a country I love with all my heart, drops bombs from on high and if civilians are killed, oh well, it nothing more than collateral damage, too bad, so sad…
There is a long list of countries that need to be brought to court before Israel is even a thought in someone’s alleged brain. So that leaves only one possible reason for them to put aside all of the countries that are really guilty of war crimes to try to put Israel in the dock: pure, unadulterated Jew-hate, Israeli-hate, Zion-hate.
So the world once again has shown its combined stupidity: Try the ONE country in the world that is innocent of war crimes.

(11)
Orrin Kom,
February 16, 2009 6:57 PM

Is Legality A Red Herring?

I wonder if the conflict is really about Iran's (Russia's) desire to exterminate Jews and take their country. Jews cannot take ANY "legal" action, since their enemies hate them just for being alive. Why worry about legality when only survival really matters?

(10)
Mike,
February 16, 2009 3:48 PM

Totally aagree!

Hamas SHOULD be in thedock. Sadly, the thinking of all international representatives and those who vote them in is utterly false and totlally distorted to the point that NO international body really has any credibility for integrity whatsoever!!

(9)
Bill Clews,
February 16, 2009 4:07 AM

Excellent article.

Alas, the world organisations all appear to be good at talking and passing resolutions (look how many were made regarding Saddam Hussein)but it never hurts to try to educate people despite all the difficulties. It saddens me that many of my fellow Christians don't see any significance in the rebirth of Israel despite everything stated in the Scriptures - but perhaps I'm getting away from the point!

(8)
Nir,
February 16, 2009 3:55 AM

To (1) Irwin Garfinkle

I believe that this is an important article even if it is "preaching to the choir".
This is because that even inside Israel and the Jewish people, there are people that are affected by the biased media and the enemy propoganda. People are sometimes convinced to think that the IDF is a war criminal.
But against this propaganda and biased media can stand a clear and undoubted voice about the right of Israel to defend its existance. With such a voice, I believe that the world opinion will finally change.

(7)
ian Senior,
February 15, 2009 6:00 PM

Leave the ugly past alone

Sir/Madam
It is indeed a shame that Israel was placed in "Bad Light" by the media. I stated in a comment before that Israel is going to have to fight harder on the propaganda front than on the terrorist one in the future.
I am glad to see that "And this week, the UN withdrew claims made during the war that Israel had shelled a school run in Gaza by the UN Relief and Works Agency". Maybe we are now closer to the facts.
As regards Hamas going on trial instead of Israel, both postulates are rediculous. Let both continue to try to get peace and co-operation. It will come at some day in the near or distant future. Hopefully, in the near.

(6)
Ava Reinfeld,
February 15, 2009 5:46 PM

Share this information with Ron Kuby

Ron Kuby, born of Jewish parents, a professed atheist should see this and probably discuss it with Mr. Dershowitz. Mr. K on the Air America network radio seems to take pride in taking the side of Hamas in the conflicts that continue. I have to date not heard a positive word regarding Israel from his radio voice.

(5)
George Stone,
February 15, 2009 3:16 PM

Good article

The world media has NEVER been even handed and impartial when reporting on Jewish or Israeli happenings. It most usually emphasizes the negative aspect of events being reported...or even worse, is one sided.

(4)
Geoffrey Dean,
February 15, 2009 1:43 PM

Good review

It is a great pity that more media organisations did not print articles like this one above. It goes to the heart of the issue. Lies from Hamas to create world sympathy abound while they allow callous criminal acts by their own militants,even encouraging them.

(3)
Dylan,
February 15, 2009 1:15 PM

I do not get why that court is going to charge Israel with war crimes. Hamas has done many more horrid things, yet they are not doing anything.
Israel, know that I do now, and always will, support you.

(2)
Cyril,
February 15, 2009 1:07 PM

G-d will bring true justice for His people, the Jews, He is the Ultimate Judge. Shalome.

(1)
Irwin Garfinkle,
February 15, 2009 11:40 AM

I Agree.

The problem with your article is that you may be preaching to the choir. I wonder if the world is listening.

I live in rural Montana where the Cholov Yisrael milk is difficult to obtain and very expensive. So I drink regular milk. What is your view on this?

The Aish Rabbi Replies:

Jewish law requires that there be rabbinic supervision during the milking process to ensure that the milk comes from a kosher animal. In the United States, many people rely on the Department of Agriculture's regulations and controls as sufficiently stringent to fulfill the rabbinic requirement for supervision.

Most of the major Kashrut organizations in the United States rely on this as well. You will therefore find many kosher products in America certified with a 'D' next to the kosher symbol. Such products – unless otherwise specified on the label – are not Cholov Yisrael and are assumed kosher based on the DOA's guarantee.

There are many, however, do not rely on this, and will eat only dairy products that are designated as Cholov Yisrael (literally, "Jewish milk"). This is particularly true in large Jewish communities, where Cholov Yisrael is widely available.

Rabbi Moshe Feinstein wrote that under limited conditions, such as an institution which consumes a lot of milk and Cholov Yisrael is generally unavailable or especially expensive, American milk is acceptable, as the government supervision is adequate to prevent non-kosher ingredients from being added.

It should be added that the above only applies to milk itself, which is marketed as pure cow's milk. All other dairy products, such as cheeses and butter, may contain non-kosher ingredients and always require kosher certification. In addition, Rabbi Feinstein's ruling applies only in the United States, where government regulations are considered reliable. In other parts of the world, including Europe, Cholov Yisrael is a requirement.

There are additional esoteric reasons for being stringent regarding Cholov Yisrael, and because of this it is generally advisable to consume only Cholov Yisroel dairy foods.

In 1889, 800 Jews arrived in Buenos Aires, marking the birth of the modern Jewish community in Argentina. These immigrants were fleeing poverty and pogroms in Russia, and moved to Argentina because of its open door policy of immigration. By 1920, more than 150,000 Jews were living in Argentina. Juan Peron's rise to power in 1946 was an ominous sign, as he was a Nazi sympathizer with fascist leanings. Peron halted Jewish immigration to Argentina, introduced mandatory Catholic religious instruction in public schools, and allowed Argentina to become a haven for fleeing Nazis. (In 1960, Israeli agents abducted Adolf Eichmann from a Buenos Aires suburb.) Today, Argentina has the largest Jewish community in Latin America with 250,000, though terror attacks have prompted many young people to emigrate. In 1992, the Israeli Embassy in Buenos Aires was bombed, killing 32 people. In 1994, the Jewish community headquarters in Buenos Aires was bombed, killing 85 people. The perpetrators have never been apprehended.

Be aware of what situations and behaviors give you pleasure. When you feel excessively sad and cannot change your attitude, make a conscious effort to take some action that might alleviate your sadness.

If you anticipate feeling sad, prepare a list of things that might make you feel better. It could be talking to a specific enthusiastic individual, running, taking a walk in a quiet area, looking at pictures of family, listening to music, or reading inspiring words.

While our attitude is a major factor in sadness, lack of positive external situations and events play an important role in how we feel.

[If a criminal has been executed by hanging] his body may not remain suspended overnight ... because it is an insult to God (Deuteronomy 21:23).

Rashi explains that since man was created in the image of God, anything that disparages man is disparaging God as well.

Chilul Hashem, bringing disgrace to the Divine Name, is one of the greatest sins in the Torah. The opposite of chilul Hashem is kiddush Hashem, sanctifying the Divine Name. While this topic has several dimensions to it, there is a living kiddush Hashem which occurs when a Jew behaves in a manner that merits the respect and admiration of other people, who thereby respect the Torah of Israel.

What is chilul Hashem? One Talmudic author stated, "It is when I buy meat from the butcher and delay paying him" (Yoma 86a). To cause someone to say that a Torah scholar is anything less than scrupulous in meeting his obligations is to cause people to lose respect for the Torah.

Suppose someone offers us a business deal of questionable legality. Is the personal gain worth the possible dishonor that we bring not only upon ourselves, but on our nation? If our personal reputation is ours to handle in whatever way we please, shouldn't we handle the reputation of our nation and the God we represent with maximum care?

Jews have given so much, even their lives, for kiddush Hashem. Can we not forego a few dollars to avoid chilul Hashem?

Today I shall...

be scrupulous in all my transactions and relationships to avoid the possibility of bringing dishonor to my God and people.

With stories and insights,
Rabbi Twerski's new book Twerski on Machzor makes Rosh Hashanah prayers more meaningful. Click here to order...